Deck v. Baltimore & Ohio Railroad

Fowler, J., delivered the opinion of the Court. This is an action to recover damages for personal injury. Louis Deck sues the Baltimore and Ohio Railroad Company and Charles A. Steiner. The ground of the action is that Steiner who is alleged to have been in the employ of that company, in the regular course of his business, shot the plaintiff, seriously and permanently injuring him.

The defendants pleaded the general issue. During the taking of the testimony of the plaintiff which was offered to establish the responsibility of the Railroad Company for the assault and shooting of the plaintiff, the plaintiff reserved four exceptions, which relate to rulings on the evidence. At the close of the plaintiff’s testimony on this question a prayer at the instance of the defendant was offered taking the case from the jury — from which ruling the plaintiff also excepted. Judgment was entered in favor of the Railroad Company and the plaintiff has appealed.

In the further progress of the case against the remaining ¹⁷⁹ defendant, Charles A. Steiner, he reserved two exceptions, one to the ruling on evidence and the other to the granting of the plaintiff’s two prayers and the rejection of his first prayer. Judgment was entered against the defendant, Steiner, and he also appealed. There are therefore, two appeals in this record and we will consider them in the order in which they were entered. But before doing so we will briefly state the facts of, and the circumstances under which, the shooting was done.

It appears from his own testimony and that of other witnesses, that on the first of July, 1899, the plaintiff and several companions, without authority, boarded a freight train of the defendant company and rode thereon to Oella a short distance beyond Ellicott City, where they spent the day. On the same evening they boarded another freight train of the same company, without authority, for the purpose of returning to Baltimore and when it was approaching the city and was near Mt. Clare station the plaintiff and his companions were ordered to leave it. The plaintiff testifies that he was already off the train and about fifteen feet from it when he heard several shots fired, by one of which he was hit and seriously injured.

First, then we will consider the questions presented by the appeal of the plaintiff. The plaintiff’s first exception was taken to the refusal of the Court to allow the witness to say whether from the point where he was ordered off the train,[if it was daylight, he could see the city of Baltimore, if looking towards the city. We are unable to see what relevancy the question or the answer thereto could possibly have had to the issues involved. The shooting took place about x 1 o’clock at night — and whether :he city of Baltimore could or could not have been seen in laylight from the point indicated does not appear to be imxortant or relevant.

Nor do we find anything in the plaintiff’s ¡econd exception which was taken to the ruling out of the estimony of the witness Thomas tending to show that the lefendant Steiner was a Battimore & Ohio Railroad detective, ar testimony as to the fact of Stener’s employment by that ompany as a detective was subsequently admitted without bjection. ¹⁸⁰ We find no error in the ruling complained of in the plaintiff’s third and fourth exceptions. After testifying that he was a Lieutenant of Police and was employed by the Baltimore and Ohio Railroad Company as a policeman atthe time of the shooting and that he was paid by that company, the defendant Steiner was asked on cross-examination whether he held a commission as policeman from the State. This ques-. tion was allowed to be answered against the objection of the plaintiff. This constitutes the third exception.

The witness answered that he had such a commission and he was asked to produce it, which he did, and read it to the jury. Whereupon the plaintiff filed a motion to strike out all the testimony of this witness in relation to witness being commissioned as police officer by the State of Maryland. This motion was overruled, and this action of the Court is the ground of the plaintiff’s fourth exception. We think it was very material that the jury should have been informed exactly how and in what capacity Steiner was acting.

He had testified in chief that he was a police officer of the defendant, that he was employed and paid by it, büt this was not all. He was also a State’s officer and as such commissioned as a special policeman of the Baltimore and Ohio Railroad Company. It was but right, we think, that the defendant should be allowed to infoi'm the jury that it had availed itself of the provisions of law which were passed for the purpose of giving corporations the benefit of capable men commissioned by the State to protect their property, and that it had not selected one of its own employees for that purpose. This brings us to the consideration of the only important question involved in this appeal and that is presented by the plaintiff’s .fifth exception which is based on the ruling of the Court granting the defendant’s prayer taking the case, or this branch of it, from the jury.

Was there any evidence in the case legally sufficient to: prove that the defendant Steiner did the shooting complained of? In the first place the plaintiff himself testifies that shortly ¹⁸¹ after he was shot and lying upon the ground, Thomas, a brakeman came over with a lantern and Steiner came also and asked what was the matter; that plaintiff replied that he was shot and Thomas picked him up and showed Steiner where the ball entered, and Steiner said “yes, if I hadn’t shot the son of a bitch I would have kicked his ribs in.’ ’ It is true that the witness Thomas contradicted this statement of the plaintiff, but it was for the jury to determine which one they would believe. Again the witness Carlin testifies that Steiner told him he shot the plaintiff. We conclude therefore, that the testimony on this point was legally sufficient to show by whom thé shooting was done.

Second. Is there any legally sufficient evidence in the case that Steiner was in the employ of the defendant company at the time of the shooting? This question must also be answered in the affirmative, for Steiner himself testifies that he was employed and paid by the defendant company as policeman at that time, and the commission he held from the State showed that he was appointed as “special policeman” of the Railroad Company. Other witnesses testified to the same effect, either that he was a detective of the company as testified to by the plaintiff and the witness, Morrison, or that he was such special officer or policeman at the time in question.

But the important question remains to be considered whether at the time of the shooting Steiner was attending to the business of the company, and if so, whether he was acting within the scope of his duty. Assuming, for if what we have already said is correct, we have a right to assume, that Steiner was present at the time of the shooting and that he was in the employ of the company as its special officer, detective or special policem'an, and assuming also that the plaintiff and his companions had been on one of its trains as trespassers and acting in a disorderly manner, it would not require much testimony to establish the fact that he was there not on any business of his own, but for the purpose of protecting the company’s employees and its property. ¹⁸² This was a laudable and proper purpose, but we not think it incumbent on the plaintiff, under the circumstances of this case, to offer affirmative and direct testimony to establish that fact. He was employed by the company and he was there, and it will not be assumed he was there for any other purpose but to perform his duty — that is, as one of the witnesses said, “To look after all depredations on the company’s property, such as robbing cars, breaking into trains, attempting to derail trains and all violations of the law along the line of the road." If then he was present as an officer of the company and as two witnesses testified he admitted he did the shooting, was he under all the circumstances of this case acting within the scope of his duty? Whether he was or was not so acting is ordinarily a question for the jury.

It was contended on the part of the defendant company that conceding the testimony we have already recited to be true, namely, that Steiner admitted- the shooting, still the defendant cannot be connected therewith unless there is some evidence of án express antecedent authority to Steiner to do the act or of a subsequent ratification thereof by the defendant. But the authorities cited to sustain this proposition are cases of false arrest or malicious prosecution and the principles announced therein have no application to this case. Thus in the recent case of Boyer v. Coxen, 92 Md. 366 , Boyd, J., delivering the opinion of the Court said: “This Court has heretofore followed the rule that the master is not exempted from liability for * . * * damages merely because the act complained of was done by a servant, and in many cases exemplary damages have been allowed against the master for acts done by the servant, without express authority from the former or ratification by him having been shown.” See also Evans v. Davidson, 53 Md., p. 245—249. Again it is settled in this State as we have said, that whether the act of the servant complained of is within the scope of his duty while acting in the furtherance of his master’s business is generally to be determined by the jury as a matter of fact and not by the Court as a matter of law.

Consolidated R. Co. v. Pearce, 89 Md. 503 . It may be very difficult, as is illustrated in this ¹⁸³ case, for the plaintiff always to obtain full and complete proof of the terms of the servants employment, and therefore it was held, as we said in the case just cited, citing Cleveland v. New=son, 45 Mich. 62 , that the burden was on the defendant to show that the servant was not engaged in the course of his employment. 'But it is clearly shown by the testimony of the plaintiff that Steiner was employed by the defendant company as a police officer and detective, and it is further shown that, as such, it was his duty to protect the company’s trains and property and to look after all violations of the law along its road.